Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


August 20, 1990

JULIE DUBBS, and all others similarly situated, Plaintiffs,

The opinion of the court was delivered by: LYNCH


 Defendants have renewed their motion to dismiss plaintiff's complaint for failure to state any claim upon which relief may be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Having considered the briefs and relevant precedent, the Court hereby denies defendants' motion to dismiss this action, but dismisses plaintiff's second claim with prejudice.


 For the sake of brevity, the Court omits a lengthy recitation of the facts, and refers parties to the statement of facts contained in the Ninth Circuit's opinion in Dubbs v. CIA, 866 F.2d 1114 (1989) and to this Court's prior opinions in this action rendered on November 27, 1985 and September 3, 1986.

 Briefly stated, plaintiff Julie Dubbs is an openly gay woman who has worked at SRI International, a private non-profit research institute, for over nine years. Her present position of employment is as a Senior Technical Illustrator. During the course of her employment and because her job duties so required, she sought Top Secret security clearance from the Department of Defense and Sensitive Compartment Information ("SCI") security clearance from the Central Intelligence Agency ("CIA"). Although the Department of Defense granted her a security clearance, defendant Director of Security for the CIA and defendant Director of the CIA denied her a SCI security clearance.

 She filed suit against the CIA, its Director and its Director of Security in July 1985, alleging, among other claims, that the defendants denied her the SCI clearance pursuant to an unconstitutional blanket policy of denying such clearances to gay persons. After this Court granted defendants' motion for summary judgment, finding, with respect to plaintiff's blanket policy claim, that there was no genuine issue of material fact with respect to the existence of such a policy, the Ninth Circuit Court of Appeals reversed and remanded this action for further proceedings. See Dubbs, 866 F.2d 1114.


 Defendants have moved to dismiss plaintiff's first amended complaint. *fn1" This complaint contains the following claims: (1) an equal protection claim based upon the CIA's alleged blanket policy of denying security clearances to homosexuals (Compl., paras. 11-14) *fn2" ("Blanket Policy claim"); (2) an Administrative Procedure Act claim based upon the CIA's alleged failure its own directives (Compl., paras. 15-19) ("APA claim"); (3) an equal protection claim, based upon another alleged policy of the CIA which discriminates against gay persons by considering "homosexuality and related social conduct as negative factors" while not "similarly viewing heterosexuality and related social conduct" (Compl., paras. 20-22) ("Negative Factor claim"); (4) an alleged violation of plaintiff's first amendment right to associate freely with other homosexuals (Compl., paras. 23-25) ("First Amendment claim"); and (5) a Bivens action against the Director of Security because defendant Director of Security falsely accused plaintiff and another of concealing their homosexuality, in order to deprive her of various constitutional rights (Compl., para. 27) ("Bivens claim").

 I. The Applicable Test.

 Generally, in considering a motion under 12(b)(6), the Court is required to believe all well-pleaded facts in the complaint as true, and to make all reasonable factual inferences in support of the complaint. As the Supreme Court stated in the leading case on this type of motion,

in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to a state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

 Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Of course, the Court is not required to accept every statement made in a complaint as true; for example, courts do not accept as true legal conclusions cast in the form of factual allegations if such conclusions cannot be reasonably drawn from the facts alleged, or if such conclusions contradict matters of public record or items appearing in the record of the case. See 5A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE, ยง 1357 (2d ed. 1990).

 Thus, for purposes of ruling upon defendants' motion, the Court accepts as true the following allegations: the CIA has a blanket policy of denying security clearances to all homosexuals even if they are trustworthy individuals (claim 1); the CIA generally follows the procedure set forth in Director of Central Intelligence Directive No. 1/14 in adjudicating applications for access to SCI but did not follow this procedure in adjudicating plaintiff's application and instead denied her application solely because of her homosexuality and sexual conduct (claim 2); the CIA views homosexuality and homosexual conduct as negative factors in deciding whether or not to grant a security clearance but does not so consider heterosexuality or heterosexual conduct (claim 3); the CIA assumes that plaintiff is likely to be susceptible to indirect coercion resulting from future relationships with secretly gay women (claim 4); and the defendant Director of Security falsely accused plaintiff of concealing her homosexuality in order to harm her professionally (claim 5).

 The Court does not accept as true plaintiff's allegation that homosexuals are "members of a suspect class" (Compl., para. 11, at p. 4) to the extent that this allegation would require the Court to apply a heightened standard of scrutiny. This is a legal conclusion, and it may not be reasonably be inferred from the facts alleged in the complaint because the Ninth Circuit, as all parties are well aware, has recently decided that classifications based upon homosexuality are not entitled to heightened scrutiny, but rather are to be tested by a rational basis standard. High Tech Gays v. Defense Ind. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), rehearing en banc denied, 909 F.2d 375, 1990 U.S. App. LEXIS 12493. A plaintiff cannot, by clever pleading, defeat a motion to dismiss if it is obvious from the face of the complaint that there is no basis for the relief requested; thus, plaintiff cannot decide for herself the appropriate standard of review, if this decision has already been made by a court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.